Parliamentary Questions (Non-departmental Public Bodies)
The third item on the agenda is parliamentary questions and non-departmental public bodies—which is actually easier to say than the acronym, the order of which everybody gets wrong. We are joined for this item by lots of additional people. We have Hugh Flinn and Janet Seaton from the Parliament side, and from the Executive I welcome Colin Miller, the head of constitution unit in the constitution and parliamentary secretariat, and Fiona Robertson, from the public body and executive agency policy unit. It is interesting to find out that such units exist.
The substance of the report is a series of letters that have bounced backwards and forwards, and a paper that suggests an outline for possible agreement on the way forward. We probably want to hear from the parliamentary and Executive officials where this is going, what stage we have reached and whether we are ready to agree to the tentative co-operative procedure as the way forward. When the officials have spoken, we will have questions and discussion. Who will lead off?
Janet Seaton (Scottish Parliament Research and Information Group):
I welcome the Executive's response to our suggestions. Although there are some issues that we need to continue to explore at official level, the clear implication is that members will be able to have more transparent substantive responses to questions to non-departmental public bodies that are judged to be on non-operational matters. That is a forward-looking step that will improve accountability in the long run.
I should pass that immediately to the Executive side to comment.
Colin Miller (Scottish Executive Legal and Parliamentary Services):
It would be fair to say that the Executive has no difficulty with the principle of the proposition; it is simply a matter of what the committee will find to be the most practical way of giving it effect. We regard two options in the paper that Janet Seaton prepared for the committee as being perfectly workable and practical. The basic objective is to find a way in which to get the substantive response from the relevant chief executive on to the parliamentary record. As far as the Executive is concerned, we see no difficulties in principle.
Are there any questions or comments?
To me, model 5.1—the executive agency model—is the most attractive because it is the most responsive. The disadvantages of all four proposals are listed, which all seem to me to be quite similar from the point of view of the officials on either side of the divide—if that is the right word. Would the executive agency model produce much more work than the other three models?
The four models are the executive agency model, the "will write" model, the indirect high-visibility model, and the indirect low-visibility model. From the subsequent correspondence, the high-visibility and low-visibility models seem to be more popular than the executive agency and "will write" models. As a difficult MSP, I find model 5.1 to be much more attractive. Can you explain to me the downside of that proposal?
One question is the transparency of the person who is accountable. When a question is passed from the Executive to the chief executive of an NDPB for an answer, that is done because accountability rests primarily with the chief executive. Therefore, would not it be more transparent if the response from the chief executive was published on the parliamentary record, rather than the answer from the minister saying, "Here is what the chief executive has to say"?
I thought that that was what 5.1 meant. I am not suggesting that the minister should reply. If people ask questions about jails, for example, and the minister gets the boss of the jails to reply, that would be the reply to the written question, or the minister could say, "The boss of the jails has said X." Would not it be possible to say, "The boss of Scottish Enterprise Lanarkshire has said X"?
Yes, that model would work. Our preference is to use models 5.3 or 5.4 because they are slightly simpler processes, but there is no reason why what Donald Gorrie suggests could not work.
Fiona Robertson (Scottish Executive Legal and Parliamentary Services):
The distinction relates in part to the fact that agency chief executives are directly accountable to ministers but, in contrast, NDPB chief executives are accountable to their boards, which in turn are accountable to ministers. That is where the distinction arises in the procedures for responses.
I have an example. At a recent visit to a further education college, the principal of the college said that some of the rules that were imposed on it by the local enterprise company were extremely destructive: that is a public issue. I accept that the local enterprise company is a free-standing NDPB, but it uses public money. If that allegation is correct, the LEC is preventing the education system from delivering what it should deliver, and we should become involved in some way. I cannot quite accept the total independence of the chairman of whatever enterprise company it is.
The local enterprise company, as part of the enterprise network, would be answerable to the chief executive of Scottish Enterprise. Any question about the local enterprise company would be directed through that route. For a further education college, the public body that is responsible for allocating funding is the Scottish Further Education Funding Council. On the issue that Donald Gorrie mentioned, neither the local enterprise company nor the further education college would come under the remit, because they are not NDPBs.
Most MSPs will sympathise with Donald Gorrie's position on the difficulty of getting issues that we are concerned about dealt with in the system that we are used to, which is the question and answer system. The problem with models 5.1 and 5.2 is that by using ministerial questions, they imply that the minister has direct control over the bodies, when the minister does not have such direct control. It would therefore be wrong to use a system that encourages one to think that ministers control the decisions.
Although they are not NDPBs, local health boards are a good example. They make decisions that will be referred to ministers, but—as we have discovered to our cost in Glasgow—because the local health board makes the decisions, it is wrong to put to the minister, or to have responded to in the minister's name, questions on decisions that are not made by the minister. That is why model 5.3 is a good way forward—it gets the issues on the public record, but makes it clear that the answers come from the chief executive of the agency.
I have a separate question. I was encouraged by the list in the paper at the back, which contains a series of points.
Is that the one with the blue tag?
Yes.
I take it that I am right in thinking that the Executive and the Parliament have pretty much agreed to the bullet points listed in that paper as the way forward and that we are already some way down the line in negotiating those. One of the points states:
"The Chairman/Chief Executive of the NDPB replies within the agreed target, preferably using a standard form".
Is there any advantage in having a standard form? I am not sure why that would be the case, as I would have thought that the replies would be in the form of a letter.
From our point of view, the advantage of having a standard form is that it would greatly facilitate the information technology processes that would be required to include replies in the written answers report. However, we are more than happy to discuss the details with the Executive to see what is most appropriate.
I want to make a number of general points. First, I continue to be concerned, as I have been since the beginning of the Parliament, no matter what position I have held, about whether we are striking the right balance between scrutiny and delivery. I am opposed to anything that puts unnecessary burdens on agencies that need to concentrate on using their finite resources to deliver a service or do a job of work. That is not to cast aside the need for effective accountability, transparency and scrutiny, but I worry that we might be considering only one side of the coin, which is the scrutiny process, without thinking about the opportunity cost that is involved.
In our other discussions and in our CSG inquiry—although admittedly insufficiently in that inquiry—we have touched on the impact that the existence of the Parliament and the questions that individual members ask have had on a range of different bodies. We need to be alive and sensitive to that issue. Let me be clear: I do not advocate that public bodies should operate behind closed doors or not be accountable. I say simply that a balance must be struck.
There are definitely pressures out there at the moment. I know that in the health service, which has been mentioned, a considerable amount of organisational energy and resource is sometimes being taken up just in the process of scrutiny. To be frank, I would rather see some of that time, energy and resource involved in service delivery. I simply note my concerns in that regard.
Secondly, although I share other members' concerns about the appropriate accountability channels for different bodies—there are interesting questions around the way in which further education colleges are constituted and there is a continuing debate about how health bodies should be constituted—I make the point that any system of parliamentary questions can work only within the existing systems of accountability. That should be self-evident but, in discussions such as this, we often find ourselves seeking to deal with what we see as the bigger shortcomings in the lines of accountability. However, to fix those problems, we would need to debate the substance of which lines of accountability should exist for particular bodies. Our approach should not be to twist, turn and distort a system of questioning so that it does something that is at variance with a particular channel of accountability. I feel that shades of that approach are coming through in our discussion.
Thirdly, we need to be aware that there may be a tension in what we seek to do. Most parties in the Parliament genuinely desire to ensure that power is effectively devolved to those who deliver services and functions. In other words, most of us favour putting into practice the principle of subsidiarity. Therefore, we must guard against our desire for bodies to be accountable to the Parliament running counter to that. The Parliament should not be more centralising either in substance or in tone. Increasing the accountability of bodies need not necessarily involve making them answerable to the Parliament. For example, local bodies could be made more accountable by enhancing the role of elected local authorities.
Having shared that philosophical meander, I would take a practical point of view. In line with what I said on the previous item, I am happy to move forward by testing other options to see how they work. Essentially, that is what the paper proposes. I favour any model that best fits the concerns that I have expressed.
I do not like the model that is proposed in paragraph 5.1. I feel that it would be particularly bureaucratic and would involve double handling, and I doubt that it would add value. I am attracted to a system that does not duplicate information but widens the sharing of it. If a body's chief executive is to reply to a member anyway, it strikes me that it would not require a huge amount of effort and resources to build in a reproduction system that shared that information as part of the parliamentary process. The paper proposes a couple of models that are variations of that.
I am happy to go ahead and test some of the options, but I hope that we do not lose sight of the much bigger challenges with which the Parliament is still grappling.
I disagree with Susan Deacon, as I prefer the option given in paragraph 5.1.
Ken Macintosh referred to the health boards, which provide a good example of how responsibilities are shared. For example, improving the health statistics for Glasgow Springburn—or anywhere else for that matter—is a responsibility that is shared by the minister and the local health board. When I ask questions about what action Glasgow NHS Board is taking to deal with the high number of cancer deaths in Glasgow Springburn, I also want to raise the issue for the minister's consideration. There is a good argument that such responsibilities are cross-cutting.
If a response on cancer deaths in whatever constituency were placed in the public domain by being channelled through the minister, that would ensure that the issue was brought to the attention of the minister and the local health board. That process could be helpful in ensuring the accountability both of non-departmental bodies and of Executive departments. I prefer the model in paragraph 5.1, as it would give greater opportunity to scrutinise departments.
I also want to touch on the cost of the questions, which is an issue that I feel strongly about and which the Executive has raised on a number of occasions. I do not think that we can win that debate. At the end of the day, we set up the Parliament to provide the opportunity for members to scrutinise the Executive and non-departmental public bodies, and that will cost us money. We need to be clear that scrutiny of any democratic body costs resources, whether it be at local government level or at parliamentary level.
The time scales for responses to questions have improved a great deal since the early days of the Parliament. As I recall, previously, some of us had to wait up to 10 months for various departments to provide responses to questions, but the time scales have improved a lot over the past 18 months.
In itself, that should reduce costs, as I am sure that it must have cost money to allow questions to go unanswered for some time. What happened was that, if members did not receive a response to their questions within the expected time scale, they would ask a duplicate question or other questions in and around their initial question. Perhaps it does not really matter which model we consider; if we tell members that we want to find ways of reducing the number of questions that are asked, that is fair enough. After all, members will always have an opportunity to ask questions.
I point out that some questions have been ridiculous. For example, there have been questions about catering facilities, and I recall a member asking whether air conditioning would be provided in the Parliament's canteen area.
Was that a question to a non-departmental public body?
Well, I wonder; members were raising such unnecessary questions in the early days of the Parliament. We cannot get away from the fact that resources will be required to answer questions. We must deal with that, but we must also consider ways of assisting members to ensure that they do not have to ask certain questions.
We all agree that the resources need to be available.
I think that we should return to NDPBs, which are the subject of the paper.
If we pursued any of the models outlined in paragraphs 5.1 to 5.4 of the paper, what percentage of questions would be affected by the change? Moreover, can anyone give me an idea of the percentage of parliamentary questions that are asked of ministers that in effect are directed at NDPBs?
As a member, I can write directly to the chief executive of any NDPB. Indeed, none of the proposed models precludes such an approach. As a result, we should ask ourselves why we need to ask ministers such questions. That point touches on the issue of accountability that Susan Deacon raised. It is interesting to note that members can receive a quicker and more comprehensive response by writing to a minister than by writing directly to chief executives of NDPBs. That might be an advantage in itself.
We must also address the question of confidence. Sometimes, a member might want to write to a chief executive of a body, but might not necessarily want the reply to be broadcast to the world and the universe. For example, a letter might raise confidential issues that relate to a campaign or the member might wish to protect a constituent's interests on a certain matter. The models outlined in the paper take a more sophisticated approach to the reasons why members want to ask particular questions of ministers.
In summary, I want to find out the percentage of questions that would be affected if we adopted the suggested models. Furthermore, would they have any implications for the time taken? From an Opposition member's point of view, it is helpful to ask ministers particular questions instead of dealing directly with NDPBs. Finally, is there any way of protecting constituency interests if a member does not want a reply to be posted on a website or published until a suitable date, although I realise that that is contrary to the general principle of transparency that we are trying to pursue?
I will answer the second and third questions, and Janet Seaton will respond to the question about percentages.
The proposal contains absolutely no suggestion that members' ability to pursue matters directly with NDPBs would be affected if they wished to take such a route instead of asking a parliamentary question. Because the matter would be pursued directly with an NDPB, it would not go through the parliamentary process. As a result, the proposed arrangements for publicising answers would not apply in such grey areas.
I carried out a spot check of a number of weeks and discovered that between 1 per cent and 2 per cent of questions would be affected by our proposals, which is about four questions out of 150 or 155 a week.
Does Fiona Hyslop have any other questions?
Perhaps I am using a sledgehammer to crack a nut, but I want to raise a more fundamental question about the process of publishing answers. How do we ensure that health boards and so on are directly accountable to the Parliament instead of to the minister concerned? That is probably more a question for committees.
The executive agency model outlined in paragraph 5.1 of the paper is straightforward. After all, if only 1 per cent to 2 per cent of questions are affected, none of the disadvantages that the model presents, such as increased administrative burdens on parliamentary and Executive staff, would be horrendous. I suspect that, if I were the minister, I would want to keep a watchful eye on the issues that were being raised and putting pressure on certain areas. Such a model has advantages for both ministers and departments, and I do not think that the increased bureaucracy required to deal with 1 per cent or 2 per cent of questions would be inordinate.
For clarification, were questions about health boards or other NHS bodies included in the calculation that Janet Seaton carried out?
Yes.
I am surprised by that.
The disadvantages of each of the models that are outlined in paragraphs 5.1 and 5.2 are not the reasons why we are not pursuing those lines. We are not pursuing them because the Executive feels that they do not reflect the lines of accountability. Indeed, Patricia Ferguson's letter outlines the reasons why we are not taking the approaches outlined in paragraphs 5.1 and 5.2. Whether they increase, decrease or otherwise affect bureaucracy is neither here nor there; the point is that the proposal in paragraph 5.1 presupposes a direct line of accountability between ministers and the actions of NDPBs. As there is no such line, we should not take that particular approach. That is why we are adopting the model that is outlined in paragraph 5.3. Does that make any sense?
I understand what you are saying.
If we follow that argument, the essential question is how we make NDPBs accountable.
That is a different issue. Although I totally agree with the three points that Susan Deacon raised, they are more to do with accountability. This particular question is more about the transparency of the accountability that already exists. In response to Paul Martin, I suggest that if a minister is responsible for policy that relates to cancer levels in Glasgow, he or she should answer any questions on that issue. However, questions on issues for which the minister is not directly accountable should not be answered in the minister's name, which is why we have adopted the model that is outlined in paragraph 5.3.
What Kenneth Macintosh has said is correct. The paper before us does not seek to resolve the debate on accountability, which has been part of the currency of political exchange over the past four years and has emerged as a significant area for further work in the CSG report. Instead, the paper simply addresses the relatively straightforward issue of how questions as they stand at the moment should be handled and how answers might be more realistically sought from the correct person or agency and placed on the public record. It is a tidying-up job, and the work that has been carried out and the agreement that has been reached are entirely sensible. We should proceed on that basis.
Of course, none of that precludes our successor committee or any other committee that has the matter within its sphere of competence from examining the accountability of agencies and NDPBs. We simply need to be realistic. The proposal is useful. I hope that the committee will agree to endorse it and invite officials on both sides to work through the remaining stages of the process and come up with a workable model that can be introduced by the target date specified in the paper. Are members agreed?
Members indicated agreement.
I would like to add a point that might not have been considered by parliamentary staff and/or the Executive. I feel strongly that, after the election, there will be a need for good guidance to members about how to elicit information from NDPBs and so on. After all, such bodies come in many different shapes and forms. I know that the issue was discussed in various quarters at the beginning of the first session but was squeezed out, probably because of a lack of time and resources. Instead of organisations—executive agencies as well as NDPBs—bombarding members with information about whom they can contact and why they might want to contact them, or doing so via the Executive, members should receive additional guidance on the matter at an early stage. To the best of my knowledge, no such guidance exists. Surely that would help to oil the wheels of communication.
Is the chamber desk reviewing guidance on questioning?
We have reviewed the guidance on questions, but the issue raised is rather wider than that; it is more about sources of information.
We could consider the matter, but it is more difficult to give guidance on a huge area than it is just to say that SPICe has the facility and anyone can ask for the contacts that they want. I would need to know a bit more about what members are after, but perhaps that can be discussed separately.
It is worth recollecting that most, if not all, parties entered the last Scottish election with a cure for the problem—abolishing all the NDPBs.
That is not within the committee's remit, nor could it be fitted into the time that we have left.
I thank Executive and parliamentary officials for their attendance. We have managed to agree on the way forward.